1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID LEGG, : Case No. 2:11-CV-00567 

 : 

Plaintiff, : 

 v. : JUDGE ALGENON L. MARBLEY 

 : Magistrate Judge Norah McCann King 

AMSTED RAIL COMPANY, INC., : 

 : 

 : 

Defendant. : 

OPINION AND ORDER

I. INTRODUCTION 

This matter is before the Court on Defendant’s Motion to Dismiss Counts I and II of 

Plaintiff’s Complaint and Motion for More Definite Statement of Count III. (Doc. 6). For the 

reasons that follow, the Motion to Dismiss Count I is GRANTED, the Motion to Dismiss Count 

II is DENIED, and the Motion for a More Definite Statement of Count III is GRANTED.

II. BACKGROUND 

Defendant Amsted Rail Company, Inc. employed Plaintiff David Legg from January 31, 

2007, until March 29, 2011. From late 2010 until his termination, Plaintiff repeatedly spoke out 

against Defendant’s plan to change its seniority policy in a way that Plaintiff perceived as 

discriminatory to the company’s “more senior employees.” On March 20, 2011, Plaintiff 

complained to Defendant about unsafe work practices of contractors at a worksite. Later that day, 

Plaintiff was involved in a workplace accident that caused injury to a contractor. Defendant 

suspended Plaintiff pending an investigation, and then fired him on March 29, 2011, for 

engaging in reckless behavior and injuring an individual. Plaintiff alleges that he was not 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 1 of 10 PAGEID #: <pageID>
2

terminated for causing the workplace accident, but was terminated in retaliation for speaking out 

against Defendant’s discriminatory conduct and unsafe work practices. 

 Plaintiff filed suit against Defendant in the Franklin County Court of Common Pleas on 

May 24, 2011. (Doc. 3). Defendant filed Notice of Removal to this Court on June 24, 2011. 

(Doc. 1). Plaintiff brings the following claims: (1) that Defendant terminated his employment in 

violation of employees’ right to protected concerted activity pursuant to §§ 7 and 8 of the 

National Labor Relations Act (“NLRA”), 29 USCA §151 et seq.; (2) that Defendant terminated 

his employment in retaliation for Plaintiff’s complaints against discrimination in violation of 

Ohio Revised Code § 4112.02 and § 4112.99; and (3) that Defendant terminated his employment 

in retaliation for Plaintiff’s complaints against discrimination in violation of Ohio public policy, 

including but not limited to Ohio Revised Code § 4112. As relief, Plaintiff requests back pay and 

benefits, reinstatement with reasonable accommodations or front pay and benefits, pre-judgment 

interest, post-judgment interest, compensatory damages, punitive damages, liquidated damages, 

attorneys’ fees, expert witness’s fees and the costs of this action. 

 Defendant filed its motion to dismiss on July 1, 2011. (Doc. 6). Defendant contends that 

this Court does not have jurisdiction to hear Plaintiff’s First Claim for termination in violation of 

the NLRA. Defendant further contends that Plaintiff’s Second Claim for retaliatory termination 

in violation of Ohio Revised Code § 4112 fails to state a claim upon which relief may be granted 

because Plaintiff has failed to allege that he was retaliated against on a statutorily protected basis. 

Defendant finally contends that Plaintiff’s Third Claim for retaliatory termination in violation of 

Ohio public policy, including but not limited to Ohio Revised Code § 4112, lacks sufficient 

specificity to provide adequate notice. The Motion has been fully briefed and is now ripe for 

decision. 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 2 of 10 PAGEID #: <pageID>
3

III. STANDARD OF REVIEW 

A. Lack of Subject Matter Jurisdiction 

 When a defendant raises the issue of lack of subject matter jurisdiction pursuant to Rule 

12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving 

jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 

(6th Cir. 2004); Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 

1990). “[M]otions to dismiss for lack of subject matter jurisdiction fall into two general 

categories: facial attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th 

Cir. 1994). A facial attack challenges the sufficiency of a complaint, and, when considering the 

motion, the court must view the material allegations in the complaint as true and construe them 

in the light most favorable to the nonmoving party. Id. A factual attack is a challenge to the 

factual existence of subject matter jurisdiction. Id. In a factual attack “the court may consider 

evidence outside the pleadings to resolve factual disputes concerning jurisdiction, and both 

parties are free to supplement the record by affidavits.” Nichols v. Muskingum College, 318 F.3d 

674, 677 (6th Cir. 2003). As Defendant’s Motion to Dismiss argues that Plaintiff’s claim of 

wrongful termination in violation of the NLRA would fall under the National Labor Relations 

Board’s jurisdiction, the Court will treat Defendant’s Motion as a facial attack. 

B. Failure to State a Claim Upon Which Relief Can Be Granted 

Rule 12(b)(6) permits dismissal of a complaint for “failure to state a claim upon which 

relief can be granted.” Fed. R. Civ. P. 12(b)(6). The complaint must contain a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed R. Civ. P. 8(a). The 

plaintiff’s ground for relief must entail more than “labels and conclusions, and a formulaic 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 3 of 10 PAGEID #: <pageID>
4

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 555 (2007). 

 Although a plaintiff need not plead specific facts, the complaint must ‘“give the 

defendant fair notice of what the claim is, and the grounds upon which it rests.’” Nader v. 

Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 93 

(2007)). “To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must 

contain either direct or inferential allegations respecting all the material elements to sustain a 

recovery under some viable legal theory.’” Klusty v. Taco Bell Corp., 909 F. Supp. 516, 520 

(S.D. Ohio 1995) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th 

Cir. 1988)). Additionally, the Court must accept as true all factual allegations contained in the 

complaint, and the complaint must be construed in the light most favorable to the party opposing 

the motion to dismiss. Davis H. Elliot Co. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176, 1182 

(6th Cir. 1975).

IV. LAW AND ANALYSIS 

A. Wrongful Termination in Violation of NLRA 

 Defendant contends that Plaintiff’s First Claim for wrongful termination in violation of 

the NLRA should be dismissed for lack of subject matter jurisdiction. The Court agrees. 

 Although the NLRA contains no express preemption provision, the Supreme Court has 

held that §§ 7 and 8 claims fall under the jurisdiction of the National Labor Relations Board. See 

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959) (holding that activity 

arguably protected by §§ 7 and 8 of the NLRA is to be adjudicated by the National Labor 

Relations Board). The Supreme Court held that “courts are not primary tribunals to adjudicate 

such issues. It is essential to the administration of the Act that these determinations be left in the 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 4 of 10 PAGEID #: <pageID>
5

first instance to the National Labor Relations Board.” Id. at 244–45. The Court reasoned that 

allowing tribunals other than the National Labor Relations Board to “control conduct which is 

the subject of national regulation would create potential frustration of national purposes.” Id. at 

783. 

 Federal courts have consistently applied Garmon’s holding. In Lewis v. Whirlpool Corp., 

630 F.3d 484, 486 (6th Cir. 2011), the court affirmed the dismissal of a claim for wrongful 

termination in violation of Ohio public policy. The plaintiff in Lewis claimed that he was fired 

for refusing to commit unfair labor practices and filed a charge with the National Labor 

Relations Board that was ultimately rejected. Id. The plaintiff then filed a claim in state court, 

which specifically alleged a violation of the NLRA. Id. at 487. The appellate court agreed with 

the district court’s finding of a lack of subject matter jurisdiction since the claim was preempted 

by the NLRA, violations of which are to be adjudicated by the National Labor Relations Board. 

Id. at 486. The court followed Garmon in reaching this finding, noting that when a “wrongfultermination claim is ‘arguably subject’ to the NLRA, Garmon preemption is implicated.” Id. at 

489 (quoting Garmon, 359 U.S. at 245).

In determining whether Garmon preemption was required, the Lewis court applied the 

following test: “(1) whether there exists a ‘significant’ state interest in protecting its citizens 

from the conduct; and (2) whether state jurisdiction over the arguable labor violation would 

entail ‘little risk’ of interfering with the uniform national labor policy.” Id. (citing Northwestern 

Ohio Adm’rs, Inc. v. Walcher & Fox, Inc., 270 F.3d 1018, 1027 (6th Cir. 2001)). The second 

prong of this test essentially asks “whether the state cause of action is ‘identical’ to a claim that 

could have been made to the [National Labor Relations Board].” Walcher, 270 F.3d at 1027. If 

the two claims are identical, then the National Labor Relations Board has preemptive 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 5 of 10 PAGEID #: <pageID>
6

jurisdiction. Id. at 1027–28; see also Sears, Roebuck & Co., 436 U.S. 180, 202 (1978) (“[W]hen 

the same controversy may be presented to the state court or the National Labor Relations Board,

it must be presented to the Board.”). The court in Lewis found the plaintiff’s state court claim to 

be identical to the National Labor Relations Board claim, and thus, preempted. Lewis, 630 F.3d 

at 489. 

Likewise, in McGlone v. Cintas Corp., 1994 WL 487340, *1 (6th Cir. Sept. 8, 1994), the 

court affirmed the dismissal of a wrongful termination claim based on §§ 7 and 8 of the NLRA. 

The plaintiff in McGlone alleged retaliatory termination for her participation in union organizing 

activities. Id. In finding that the National Labor Relations Board had preemptive jurisdiction, the 

McGlone court noted that “[b]ecause the alleged misconduct... is directly covered by provisions 

of the NLRA, any balancing of local interests against the regulatory scheme compels 

preemption.” Id. at *3. 

 Plaintiff relies on Farmer v. Davey Compressor Co., 577 N.E.2d 110 (1st Dist. 1989), to 

argue that his claim of wrongful termination in violation of the NLRA should not be dismissed. 

In Farmer, the court held that although the National Labor Relations Board has exclusive 

jurisdiction over NLRA claims, “a cause of action in a state court may be sustained ‘if the 

behavior to be regulated is behavior that is of only peripheral concern to the federal law or 

touches interests deeply rooted in local feeling and responsibility.’” Id. at 111 (citing Belknap, 

Inc. v. Hale, 463 U.S. 491, 498 (1983)). Applying that rule, the Farmer court held that an 

employee’s claims under contract and promissory estoppel doctrines were of peripheral concern 

to federal labor law and thus not preempted. Id. While Farmer’s holding is consistent with Lewis

and McGlone, Plaintiff misapplies it to the facts of his case. 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 6 of 10 PAGEID #: <pageID>
7

 Plaintiff’s First Claim of wrongful termination is brought pursuant to, and specifically 

relies upon, §§ 7 and 8 of the NLRA. Plaintiff’s First Claim is based on employees’ right to 

protected concerted activity pursuant to §§ 7 and 8 of the National Labor Relations Act, and does 

not even purport to rest upon a state cause of action.1

 Under the first prong of the Lewis test, 

Plaintiff’s claim of wrongful termination in violation of the NLRA fails, since Plaintiff alleges 

no state cause of action. Plaintiff’s claim also fails under the second prong of the Lewis test, 

since state jurisdiction over a NLRA claim would wholly interfere with uniform national labor 

policy. Plaintiff’s claim even fails under Farmer since the regulated behavior, far from being 

merely a peripheral federal concern, is the main focus of the federal law. The Court thus does not 

have jurisdiction over Plaintiff’s First Claim, and the Court accordingly GRANTS the 

Defendant’s Motion to Dismiss Count I of Plaintiff’s complaint. 

B. Retaliatory Termination in Violation of Ohio Revised Code § 4112 

 Defendant contends that Plaintiff’s claim for retaliatory termination in violation of Ohio 

Revised Code § 4112 should be dismissed for failure to state a claim upon which relief can be 

granted. The Court disagrees. 

 Ohio Revised Code § 4112 states that it is unlawful to discriminate against a person 

based on “race, color, religion, sex, military status, national origin, disability, age, or 

ancestry....” Ohio Rev. Code Ann. § 4112.02(A). Further, § 4112 states that it is unlawful for an 

employer to “discriminate in any manner against any other person because that person has 

opposed any unlawful discriminatory practice defined in this section.” Ohio Rev. Code Ann. § 

4112.02(I). 

                                                           

1

 In Plaintiff’s Memorandum in Opposition, Plaintiff mentions for the first time § 301(a) of the National Labor 

Relations Act of 1947, which states in part that “[s]uits for violation of contracts between an employer and a 

labor organization...may be brought in any district court....” Since Plaintiff has not claimed to be a union 

representative, this argument will not be discussed. 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 7 of 10 PAGEID #: <pageID>
8

To state a claim for retaliatory termination in violation of Chapter 4112, a plaintiff must2

allege that the discriminatory conduct falls within one of the protected categories listed in 

4112.02(A). Turner v. Grande Pointe Healthcare Cmty., 631 F. Supp. 2d 896, 910 (N.D. Ohio 

2007) (“To establish a prima facie case of discrimination under O.R.C. § 4112.02, Plaintiff must 

show: ‘(1) that he was a member of a protected class....’”) (citation omitted). 

 Plaintiff has pled that he was terminated in retaliation for “his advocacy against what he 

deemed as discriminatory conduct against senior employees relative to changes in the seniority 

plan and for a safe work environment.” A person who advocates for a safe work environment is 

not one advocating on behalf of a person belonging to a class protected in § 4112.02(A); thus, 

Plaintiff cannot be granted relief on this basis. 

 In regards to Plaintiff’s allegation that he was terminated for opposing “discriminatory 

conduct against senior employees relative to changes in the seniority plan[,]” Plaintiff’s use of 

the words “senior employees” in his Complaint does not clearly indicate whether he meant senior 

in reference to age or senior in reference to length of service to the company. Construing the 

ambiguity in Plaintiff’s favor, as the Court must at this stage, the Court concludes that Plaintiff 

has alleged that he was terminated on the basis of his oppositional conduct towards age-based 

discrimination, a type of discrimination prohibited by § 4112.02(A). Accordingly, Plaintiff states 

a claim upon which relief can be granted. The Court therefore DENIES Defendant’s Motion to 

Dismiss Count II of Plaintiff’s complaint. 

                                                           

2

 “[F]ederal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, 

U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Plumbers & 

Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128 (1981). This federal 

case law is found in Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (“In order to establish a 

prima facie case of retaliation, a plaintiff must establish that: (1) he engaged in activity protected by Title VII; 

(2) the exercise of his civil rights was known to the defendant; (3) thereafter, the defendant took an employment 

action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the 

adverse employment action.”).

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 8 of 10 PAGEID #: <pageID>
9

C. Wrongful Termination in Violation of Ohio Public Policy 

Plaintiff alleges that Defendant wrongfully terminated him in violation of Ohio’s public 

policy including but not limited to Ohio Revised Code § 4112. Although employment 

relationships in Ohio are generally governed by the common law doctrine of employment at will, 

Ohio law recognizes “a cause of action in tort for wrongful discharge in violation of public 

policy.” Wiles v. Medina Auto Parts, 773 N.E.2d 526, 529 (Ohio 2002) (plurality opinion). To 

establish this cause of action, Plaintiff must first prove “[t]hat [a] clear public policy existed and 

was manifested in a state or federal constitution, statute or administrative regulation, or in the 

common law....” Collins v. Rizkana, 652 N.E.2d 653, 657 (Ohio 1995); Wiles, 773 N.E.2d at 

529. 

 Defendant argues that Plaintiff’s claim does not give fair notice of the grounds upon 

which the claim is based. Defendant also argues that since Plaintiff has not referenced any other 

statutes or sources of public policy to satisfy the clarity element, the claim is fatally vague. The 

Court agrees. 

 Fed. R. Civ. P. 8(a)(2) states, in pertinent part, that “[a] pleading which sets forth a claim 

for relief...shall contain...a short and plain statement of the claim showing that the pleader is 

entitled to relief....” Fed. R. Civ. P. 12(e) states, in pertinent part, “If a pleading to which a 

responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be 

required to frame a responsive pleading, the party may move for a more definite statement before 

interposing a responsive pleading.” The Supreme Court has held that “[t]he remedy for an 

allegation lacking sufficient specificity to provide adequate notice is, of course, a Rule 12(e) 

motion for a more definite statement.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 590, n.9 

(2007). 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 9 of 10 PAGEID #: <pageID>
10

Plaintiff’s claim based on “but not limited to” § 4112 is impermissibly broad and lacks 

the specificity that would allow Defendant to determine to which laws or public policies Plaintiff 

refers. As such, Defendant’s Motion for a More Definite Statement of Count III is GRANTED. 

V. CONCLUSION 

 For the reasons stated above, this Court GRANTS the Defendant’s Motion to Dismiss 

Count I of Plaintiff’s Complaint, DENIES Defendant’s Motion of Dismiss Count II of Plaintiff’s 

Complaint, GRANTS Defendant’s Motion for a More Definite Statement of Count III. (Doc. 6). 

Plaintiff’s First Claim is, accordingly, DISMISSED. The Court further ORDERS that Plaintiff 

shall file an amended complaint within fourteen (14) days that sets forth a more definite 

statement of Count III. 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Court Judge 

DATED: November 14, 2011 

Case: 2:11-cv-00567-ALM-NMK Doc #: 13 Filed: 11/14/11 Page: 10 of 10 PAGEID #: <pageID>